FOIA As a Political Tool

The Wisconsin GOP has filed an open records request for the e-mails of University of Wisconsin Professor William Cronon . Cronon and others say the GOP is trying to silence his criticism of the labor dispute in WI. The GOP says the request is perfectly legal and they need not explain what they intend to do with the e-mails. We wanted to ask a FOIA expert to weigh in. RCFP's Lucy Dalglish explains that the law is on the GOP's side.

So, the producers at OTM find it quite objectionable that a public employee’s email account be subject to a FOIA request but didn’t have much of a problem when journalists in Tennessee used FOIA requests to publish a list of names, DOB’s, and city of residence for private citizens who posses conceal and carry permits.

The outrage from the hypocrites at OTM is directly proportional to whose ox is getting gored.

Charles, by linking me to the Lipton NYT article you have alerted me, at least, about FOIA request, "a vast majority from corporate executives seeking information on competitors that might do business with the government." What a disturbing use of public offices and massive waste of public funds to advance private gain!

One other thing to mention, Rich. While you did not mention "modern McCarthyism" (others on the left have), you did point out the significant difference between public and private actors.

And in the case of these academic FOIA requests the one thing we do NOT have, is the power of the state being used to intimidate individuals, unless of course you may think that the mere operation of FOIA laws is "the action of the state."

The FOIA requesters in Wisconsin and Michigan are private parties. The Wisconsin GOP in the Badger state, and the Mackinac Center in the Wolverine state.

This is not a prosecution, or a threatened prosecution. It is not a prosecutorial investigation. It is not a government or regulatory investigation. It is a FOIA request. The same kind of request that reporters from NPR and the New York Times are filing, all the time.

I actually do acknowledge that Gov. Walker is an elected official. And the courts saw to it that his emails were produced pursuant to FOIA. And as it turns out, the FOIA of his emails proved that Gov. Walker had been telling the truth about the nature of their majority-support for his policies.

You on the other hand seem to want to make Prof. Cronon an entirely private person. That's wrong, on two counts. First, Prof. Cronon is not an entirely private figure. He's a paid public university faculty member. Using the state university's .edu email system. Nobody is "exploiting" that fact. It is just a fact. He knows, or should know, that the .edu email system is a public one.

Second, Prof. Cronon has voluntarily made himself a public figure. Nobody forced him to initiate a blog, and nobody required him to write an Op-Ed in the Times. Indeed, but for his platform as a University academic, Prof. Cronon might not have been given that space on the Times editorial page.

Rich, I don't think the point is to punish Prof. Cronon at all. I think the point is to make a political statement. It was the same with Governor Walker. It didn't really matter, substantively, what percentage of his incoming public emails were "supportive." What The Isthmus and the left-leaning press wanted to do, was hopefully to make a political point, on a matter of red-hot public interest.

I personally won't care if Prof. Cronon gets sanctioned for using his .edu email account to write blog-posts or to order pizzas. But it will be interesting, and valuable to the political debate, to find out if Prof. Cronon's public veneer as a neutral academic observer gets stripped away by exposure of, for instance, coordinating emails with union officials and Democrats.

What some of the commentors do not acknowledge is that there is a huge difference between using FOIA to fact check statements by Gov. Walker, an elected official, and using FOIA to intimidate and punish a citizen for writing an op-ed piece, exploiting the fact that he works at a public university. Let's say that Cronon's emails show that he did use his email account to discuss politics--so what? Sure, it violates university policy, but surely it's a pretty minor violation. Now, let's say Walker's emails showed that he lied about what he was hearing from constituents? That seems to me to be significant. It doesn't matter where you are on the political spectrum to recognize the difference.

You seem to be prejudging the outcome of whatever the FOIA might reveal. You seem to know the contents of Prof. Cronen's wisc.edu email account. For my part, I'd like to see the FOIA process play out. (Actually, I have reservations about the FOIA process playing out, but they are simply the same rules in effect now, that have been used against Republicans by left-wing interests in Wisconsin in recent days.)

No one has yet mentioned; the University of Wisconsin's official response to the FOIA was to deny access to many of Cronen's emails on the basis that FERPA (federal legislation protecting students' privacy rights and research propriety) bars production.

Naturally, UW-Madison's response is not dispositive. Now, the FOIA requesters will sue the University, just as The Isthmus and WPA sued Scott Walker.

Again, it would just help if public radio would report both sides of this issue. It is is quite interesting how many of the usual suspects in the traditional liberal mainstream media are not touching this story; every fiber of their being tells them to protest the FOIA of Cronen's emails, but they can't possibly step into that level of hypocrisy, when they have used the FOIA process with such regularity.

Mr. Hoskins: Have you actually looked into the facts? Professor Cronon did use his personal time and equipment for the blog post that (presumably) so bothered the Wisconsin GOP. Your statement that under these circumstances "this would not have been any kind of an issue" is thus false, as is your statement that Professor Cronon broke the law and violated some "ethical framework".

Likewise, "R": Professor Cronon did use a separate email account and a separate computer for personal correspondence and for his blog. If you want people to listen to you, it helps to get your facts straight first.

I'm a Wisconsin taxpayer and lean right. It’s well known that Wisconsin law wisely forbids use of taxpayer owned equipment and taxpayer paid employee time for political activities. These laws shouldn’t be under emphasized. Had the professor used his personal time and equipment this would not have been any kind of an issue. Double standard? In recent years a Republican legislator had his career ruined and was convicted of crimes relating to minor use of his staff for political purposes while Democratic lawmakers guilty of similar crimes were not. It was a big case here and would warrant mention on your show.

On the face of it, this does seem like a 1st amendment issue and as such makes a nice headline. There was an article in the Milwaukee Journal/Sentinel, the main Milwaukee newspaper, stating the same. However, had you framed it from the legal and ethical framework which the professor's actions violates you would have evoked a whole different flavor of outrage.

But one thing I'm sure we could BOTH agree on, even though we obviously have differing political views:

The snarky, "knowing" delivery on OTM is offensive and abrasive. I often skip listening to the show altogether based on Brooke's oleaginous delivery. Garfield is only slightly less unctuous. It's otherwise a worthwhile program.

This was a very disappointing story. Instead of a guest with a vested interest, someone familiar with Wisconsin law on the subject would have been a much better choice. Dalglish noted that there is a "personal" exemption to the open records law, but used a trivial example (buying milk). It is certainly possible to have personal, private conversations that are substantive, and this is worthy of discussion. Moreover, Professor Cronon has raised a number of other points about information that should or might be protected, and indeed the law seems to allow other important public interests to be balanced against the interest in open disclosure. You completely ignored this, and again, an informed legal opinion on such matters would be valuable. I can't say this makes me inclined to listen further to OTM.

The kind of FOIA requests and SLAPP suits mentioned on today's show are two of the tactics used by the wireless industry to intimidate and thus manage public information about wireless radiation research and risks. Deep pockets have enormous power to mislead.

There's a computer / good tech practices angle here. I always tell people that they should have a personal email address separate from their work email address -- my advice usually falls on deaf ears. While only public employees' email are subject to FOIA, all private companies are allowed to monitor and read employee company (at least I think that's the law). So if you don't want some person or organization outside your control to have legal access to your personal emails, get your own personal email address. (even better, own the email domain, too). Maybe if the professor loses his case and his emails are made public, maybe maybe a few ears won't be deaf the next time I give email advice.

A worthy story for OTM. You've stayed on FOIA stories consistently. Except of course there was another big FOIA story this week:

http://www.nytimes.com/2011/01/29/us/politics/29issa.html

That there are political reviews of the FOIA requests submitted by journalists and watchdog groups by the Obama administration, and the administration's top lawyer calls the practice “sound managerial practice” – all in a week where the President received an award for making the government more open and transparent… presented to him behind closed doors with no media coverage or public access allowed (!)…

This may indeed be an easy question to answer from a technical FOIA standpoint. I thought Ms. Dalglish's comments were intelligent and informative; it does seem like an easy call, FOIA-wise.

And Bob Garfield didn't seem to fight the inevitable answer too much, although his tone of voice seemed to show a sympathy to Prof. Cronen, and an antipathy to the Wisconsin Republicans. Wow; shocking, I know.

It might therefore have been useful to OTM listeners, to remind them in this story that in February, the shoe was on the other foot. The liberal Madison tabloid, The Isthmus, had FOIA'ed Governor Walker. The Wisconsin Press Association joined in. Liberals wanted to challenge Governor Walker's public assertion that his email have been running strongly in favor of his Budget Reconciliation Bill. And Walker's political enemies wanted his email, fishing for email numbers that might embarass Walker.

The Isthmus and WPA filed a lawsuit to make their FOIA request stick, and they got the emails.

And guess what; Governor Walker was right. His email inbox really had been running strongly in support of his efforts.